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Not only should the general public be prevented from learning the identities of Ontario’s top-billing doctors, but so should a three-judge panel that has been asked to overturn an order for the names to be publicly disclosed, a lawyer representing some of the physicians has argued.

“I’m not opposed to having the court have a sealed envelope with the identities of the clients,” lawyer Chris Dockrill told Ontario Divisional Court Justice Ian Nordheimer on Friday.

An artist's sketch of Justice Ian Nordheimer, who dealt with procedural motions Friday related to how much information about the judicial review should be made public. (Alex Tavshunsky)

“If we are successful in the applications, the document presumably gets destroyed or gets returned or forever stays in that morass out there where the court stores and loses things,” he continued.

Dockrill, who is acting for “several affected physicians,” and lawyers for two other groups of doctors are seeking a judicial review of an order made last June by the office of the Ontario privacy commissioner to release the names of Ontario’s 160 top-billing doctors.

The privacy commissioner’s office ruled in favour of an appeal by the Toronto Star in ordering the release of names.

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The Star requested physician-identified billing data from Ontario’s Health Ministry in April 2014. For most of the doctors in question, data were provided on annual fee-for-service payments from the Ontario Health Insurance Plan and medical specialties. But names were withheld because the ministry deemed their release would be an unjustified invasion of privacy.

John Higgins, an adjudicator with the Office of the Information and Privacy Commissioner of Ontario, wrote in his decision that public disclosure is in the best interest of transparency and accountability.

Departing from previous rulings, Higgins said physician-identified billings are not “personal information” and, therefore, not exempt from disclosure under the province's Freedom of Information and Protection of Privacy Act.

Such data is made public in other provinces such as Manitoba and B.C. Physician-identified billing data is also publicly disclosed in the U.S.

The judicial review will be argued before a panel of three judges on June 19 and 20.

On Friday, Nordheimer dealt with procedural motions, mostly related to how much information about the case should be made public and how much should remain private. There is agreement among all parties that the names of the 160 doctors in question should be kept from the public, pending the outcome of the judicial review.

Dockrill said the identities should also be kept from the court, otherwise there is a “significant possibility” a judge would recognize a doctor’s name and then be compromised.

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He said his clients are concerned about being “named and shamed.”

This is a “contentious” time for the medical profession, not just because of this case, but also because it has been without a fee contract with the province for three years, he said.

Star lawyer Paul Schabas said the anonymity request from the doctors is unusual, “but an understandable one in this context.”

However, he went on to argue that a decision should be made “as narrowly as possible.”

Withholding physician names from the court and from counsel such as himself is an “astonishing proposition,” Schabas said.

He argued that the public should be given some information about the doctors, for example, the number Dockrill represents, their specialties, what part of the province they are from and their gender. The last three pieces of information could be found on the website of the College of Physicians and Surgeons of Ontario if the names of the doctors were known.

“(The anonymity motion) is still an extraordinary request. It’s still asking you to limit the public’s right to know and I submit you must do that in a way that limits the public’s right to know as little as possible and enhances the public’s ability, as much as possible, to understand what is going on in these proceedings,” Schabas said.

Nordheimer said that a person who commences a court proceeding must do so publicly and that if a restriction is sought, it must be justified.

“Why should the medical specialties of your clients — not their names, not their addresses, but their medical specialties — be kept secret?” he asked Dockrill.

Dockrill responded that such information is not relevant in determining whether the identities of the doctors should be made public. He would only say he represents a broad range of specialists from across the province.

Nordheimer reserved his decision.

The Star reported last December that the 12 top-billing doctors in Ontario received an average of $4 million each in fee-for-service claims in 2014-15, according to an audit obtained through a separate freedom-of-information request. The top biller, an ophthalmologist, received $7 million.

The Health Ministry audit uncovered significant “concerns” about their claims to the taxpayer-funded plan. Among them: six doctors allegedly charged for “services not rendered,” five “upcoded” or billed OHIP using fee codes for more expensive procedures, and three charged for “medically unnecessary” services, which the plan is not designed to fund.

Payments are not the same as income as they do not take into account expenses for office rent, staff salaries and supplies.

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